Court denies ex-hockey player’s appeal, blasts rape myth defence

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This article was published 28/07/2017 (3004 days ago), so information in it may no longer be current.

Manitoba’s top court has criticized the use of rape myths in Canadian sexual assault cases in a recent decision that dismissed a former professional hockey player’s appeal of his sexual assault conviction.

“One of the unfortunate realities of the Canadian criminal justice system historically is the prevalence of the use by lawyers, judges and juries of myths and stereotyping to discredit female and child witnesses,” the Manitoba Court of Appeal stated.

The 41-year-old accused, who can’t be identified under a publication ban, is serving a 4.5-year sentence for sexually assaulting his now-ex-wife five years ago. Part of his reason for appealing the conviction was that he believed the trial judge unfairly scrutinized his side of the story before she sided with the victim. He argued the playing ground was uneven in what was essentially a “he said, she said” case.

He argued his testimony was subjected to “a different and stricter level of scrutiny” than the victim’s, the appeal court’s decision notes.

The trial judge should have questioned the victim’s credibility based on the fact she invited him back into their home the night he raped her at knifepoint because she was concerned he would commit suicide, he argued.

She also left their children under his care after he had uttered threats to kill his wife and the kids, court heard. The judge believed the victim but dismissed some aspects of the accused’s version of events as “nonsensical” or “implausible,” which the accused argued meant the judge had considered the evidence with “uneven scrutiny.”

But the panel of judges disagreed and criticized the accused’s argument, presented by defence lawyer Richard Wolson, as relying too heavily on stereotypes about how rape victims should behave.

The defence submission to the Court of Appeal placed “an impermissible reliance on myths and stereotyping to discredit the complainant,” Justice Christopher Mainella wrote.

“Counsel for the accused invited the court to interfere with the (trial) judge’s credibility assessment based on a submission relying on myths and stereotypes regarding a complainant of a sexual assault and domestic violence,” he wrote in the decision, released July 21.

The accused was convicted after a 2015 trial in front of Court of Queen’s Bench Justice Karen Simonsen of sexual assault with a weapon, two counts of sexual assault, assault with a weapon and eight counts of uttering threats.

The convictions arose from four incidents in 2012, 10 years after his hockey career ended, in which he assaulted his wife in their home near Winnipeg or made harassing phone calls to her at work. He was acquitted of a separate sexual assault allegation against his wife in 2005.

Justice Simonsen decided that while the victim may have been raped on Dec. 24, 2005, her testimony wasn’t reliable because she was intoxicated at the time and testified she was uncertain about what had happened. A photo showed she didn’t have visible injuries the next day, contrary to her testimony.

The Court of Appeal decision is the latest in an increasing number of cases in Canada in which judges and lawyers have spoken out about rape myths and decried stereotypes about how victims react.

Earlier this summer, as it set aside a jury’s not-guilty verdict in the death of Edmonton’s Cindy Gladue, Alberta’s Court of Appeal called for national changes to how juries are instructed in sexual assault cases.

New judges in Ontario are required to receive additional training on sexual assault legislation. A change to federal legislation announced in June grappled with the treatment of sexual assault complainants in court, aiming to prevent laws from being misused. It updated the so-called rape shield laws, limiting the use of a victim’s past sexual history in court and clarifying issues of consent.

katie.may@freepress.mb.ca